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01 Oct Jogger and Cyclist Collide

Many people are out cycling in late spring and summer, when the weather warms up. Cycling accidents are not just limited to those between cars and cyclists, as you will see in the recent case of Perilli v. Marlow, 2018 BCSC 495.

In this case, the Plaintiff was jogging along a familiar route on a summer afternoon when he came up behind three young girls riding their bicycles. The Defendant was one of those cyclists. Her grandparents, who had taught her to ride, were the other Defendants.

The Defendant was ten years old at the time of the accident. She and two friends were riding their bicycles on a street that had a sidewalk on one side and cars parked on the other side. The girls decided that it would be safer to ride on the sidewalk. They rode three abreast and in a direction that faced oncoming traffic. Two of the girls were on the sidewalk while the Defendant was riding on the street adjacent to the curb. The girls were talking to each other as they rode along.

The Plaintiff had been running on the sidewalk in the same direction the girls were cycling. There was no room to pass the cyclists on the sidewalk so he decided to go around the Defendant on the road. The Plaintiff testified that he was unsure if the cyclists were aware of his presence. He did not announce his intention to pass them because he did not want to startle them. He left 1- 1.5 metres of space from the Defendant as he began to overtake her on the right.

The Defendant testified that she heard the Plaintiff’s footsteps. She glanced over her shoulder and saw him about 2 metres behind. She had been about a foot from the sidewalk and edged her bicycle closer to the curb so as to let him pass. She looked back over her shoulder again and saw that he had slowed down and fallen back. She assumed that he was not going to pass. As a result, she maneuvered her bike slowly back to the same distance she had been from the curb. She did not give a hand signal. The Plaintiff tried to avoid colliding with her, but his foot struck the rear wheel causing him to fall to the pavement. He suffered various injures with the most serious being to his shoulder, which required surgery.

The Plaintiff claimed that the Defendant owed him a duty of care and that she had breached that by:

Cycling without due care and attention;

Changing direction or speed without signaling;

Cycling on the sidewalk while riding abreast with other cyclists;

Cycling recklessly or carelessly without due regard to the safety of other individuals using the roadway;

Failing to maintain an adequate lookout; and

Failing to take any or adequate steps to avoid colliding with the Plaintiff.

The Plaintiff’s claims against the Defendant’s grandparents were on the basis that they did not properly instruct her in the safe operation of a bicycle.

The Defendant did not dispute that she owed a duty of care to the Plaintiff. The question was whether she breached the standard of care owed to him in respect to that duty and whether she acted reasonably in the circumstances.

The Judge reviewed the law and noted that the breach of a statute does not of itself establish negligence. Negligence can only be shown if the Defendant did not exhibit the standard of care required in the circumstances, and the breach of that standard contributed to the collision.

The standard of care on a ten-year-old child is different than the standard attributable to an adult. A child is to be measured with the standard that conforms to another child of similar age, intelligence and experience. A momentary lapse in awareness may be expected from children; such a lapse does not result in a finding of legal responsibility.

As a cyclist, the Defendant was bound to obey the rules of the road as set out in the Motor Vehicle Act, R.S.B.C. 1996, c. 318. That Act states that a cyclist must not ride on a sidewalk unless authorized by a bylaw, must ride as near as practicable to the right side of the highway and must not ride abreast of another cyclist. A cyclist must not ride without due care and attention or without reasonable consideration for other using the highway or sidewalk. A cyclist must also use arm signals to signify a turn.

The Judge found that the only statutory duty the Defendant had breached was failing to ride as near as practicable to right side of the road. The question was whether that breach contributed to the accident in a way that attracted liability in negligence.

The Judge found that the Defendant was paying proper attention to her surroundings and to others who were using the roadway. She acted with due care and attention and did not conduct herself in a manner that imperiled others or was the cause of the Plaintiff’s injuries.

The Judge accepted the Defendant’s evidence that she moved her bike away from the curb gradually. The Judge noted that the Defendant was not required to continually look behind her. Requiring her to do so would place her and others at greater peril than someone in the position of the Plaintiff who was following and able to see everything in front of him.

The Defendant’s actions were not perfect. However, the standard of care is not one of perfection and her actions (looking behind her only twice) were not inconsistent with what a similarly aged young girl would have reasonably done in the circumstances.

The Judge found that riding on the left side of the road did not contribute to the accident. It was reasonable for the young cyclists to seek the sanctuary of the sidewalk on the side of the road that was facing traffic.

The Judge concluded that the Defendant was not liable for the accident. She had acted reasonably in the circumstances and did not breach the standard of care that she owed to others using the roadway. Since she was not in breach, there could be no liability against her grandparents.